March 11, 2013

Plaintiffs to Appeal Dismissal of 'Plan Colombia' Lawsuit Against DynCorp

Lawyers for several thousand Ecuadorian citizens suing DynCorp International over alleged exposure to toxins through an aerial herbicide spraying operation are preparing to appeal a recent order dismissing the case.

In 2001, more than 2,000 Ecuadorians sued DynCorp in Washington federal court, claiming that the herbicide made them sick, hurt their animals, and ruined their land. In a February 15
opinion that was unsealed last week, U.S. District Judge Richard Roberts excluded testimony from the plaintiffs' sole expert. Without that testimony, Roberts found that the plaintiffs couldn't prove that DynCorp's actions caused their injuries and dismissed the case.

Terry Collingsworth, managing partner for Conrad & Scherer's Washington office and lead counsel for the Ecuadorian plaintiffs, confirmed today that his team is "assessing which of the many possible appealable issues they will pursue in the Court of Appeals."

"The first victims of the undisputed aerial fumigation in this case first filed their case in September, 2001. They have been waiting over 12 years for justice. They will continue their fight until they get it," Collingsworth said.

But a lead attorney for DynCorp, Eric Lasker of Hollingsworth, said Roberts made the right decision. His co-lead counsel was firm partner Rosemary Stewart.

"The company's position from the beginning has been that the spraying operations were completely safe, and that view was confirmed by the United States Department of States, the EPA, the U.S. Department of Agriculture, and an independent expert panel appointed by the Organization of American States," Lasker said. "We are gratified that the district court in its rulings has agreed with what the science shows."

DynCorp contracted with the U.S. State Department to spray the herbicide glyphosate in an effort to eradicate cocaine and poppy plants in Colombia. The operation was known as "Plan Colombia." The Ecuadorian plaintiffs claimed that the herbicide drifted across the border, causing short- and long-term health problems and hurting their livestock, fish, and crops.

On March 5, the court unsealed two opinions that Roberts issued in February. On February 6, he
granted DynCorp summary judgment on claims related to livestock and crops, finding that the plaintiffs failed to draw a link between the herbicide and any damages. But Roberts ruled that claims related to human health problems could survive, assuming he permitted testimony from the plaintiffs' only expert, Dr. Michael Wolfson.

A week later, however, Roberts granted DynCorp's motion to exclude Wolfson's testimony. Wolfson had drawn a link between the herbicide and acute illnesses – skin irritation, vomiting, and respiratory problems, for example – as well as an increased risk of cancer. Roberts found that although Wolfson had an extensive background in occupational and environmental medicine, he couldn't offer a reliable opinion on whether the herbicide could have caused those injuries.

Roberts wrote that the plaintiffs and Wolfson failed to offer enough evidence that Wolfson reached his conclusions through "scientifically valid" methods.

"Such a generalized and non-specific description falls short of the plaintiffs' burden to explain with specificity the expert witness' methodology, show that the expert's testimony is based on a reliable methodology, and establish that the expert reliably applied the methodology to the facts of the case," he said.